El-Saeidy v NSW Land and Housing Corporation (No 6)

[2013] NSWSC 1775

Supreme Court

New South Wales

Medium Neutral Citation:

El-Saeidy v NSW Land & Housing Corporation (No 6) [2013] NSWSC 1775

Hearing dates:

25/11/2013

Decision date:

25 November 2013

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The application for stay of proceedings is refused.

(2) The plaintiff is to pay the costs of the application.

Catchwords:

PROCEDURE - application for stay of proceedings - balance of convenience - whether a grant of stay will be in the interests of justice

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

Category:

Interlocutory applications

Parties:

Fawzi El-Saeidy (Plaintiff)
NSW Land & Housing (Defendant)

Representation:

Counsel:
D Burwood (Plaintiff)
E Elbourne (Defendant)
Solicitors:
JK Solicitors (Plaintiff)
McCabes Lawyers (Defendant)

File Number(s):

2009/294748

Publication restriction:

Nil

ex tempore Judgment - Application for stay

1. HER HONOUR: Mr El-Saeidy seeks a stay of proceedings.

1. Section 67 of the Civil Procedure Act 2005 provides that subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day. Additionally, the State of New South Wales relies on the inherent jurisdiction of this Court. The overriding principle involves the question of what the interests of justice require. It is more convenient and consistent with the 'overriding purpose' of the Civil Procedure Act (ss 56-58), that all or as many disputes as possible between the same parties are determined in the one proceeding and any ultimate relief to be obtained is obtained as quickly and cheaply as possible.

1. In Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103, McColl JA stated at [18] -[20]:

"[18] The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Assn v Stevens [2003] NSWCA 95 at [83] per Spigelman CJ (Meagher JA and Sheller JA agreeing).

[19] The detailed principles concerning the grant of a stay are set out in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694:

a. Where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, the Court will normally exercise its discretion in favour of granting a stay;

b. the onus is upon the applicant to demonstrate a proper basis for a stay;

c. it is a matter of discretion whether the Court grants a stay and if so as to the terms which would be fair as part of the granting of a stay;

d. what is important in considering whether or not a stay ought be granted is the balance of convenience and the competing rights of the parties before it;

e. it is not necessary that special or exceptional circumstances should be made out; it is sufficient for the applicant to demonstrate a reason or an approp riate case to warrant the exercise of discretion in its favour.

[20] Since a stay will prevent the judgments being enforced while the appeal is pending, the Court should endeavour to preserve the status quo by protecting the judgment creditor from the risk of loss: McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28]. There is no question in this case that if the judgment is stayed, the claimants will not be able to meet it should the appeal fail. Nor do the opponents ask for any condition should the stay be granted, subject to one matter to which I will come." (citations omitted)

1. This case arose where Mr El-Saeidy alleged there was asbestos present in the house, and to some extent when it came to hearing, it was common ground that there was some. On 22 September 2011, that is over two years ago, I ordered that NSW Land & Housing ("Housing") had to have this following work carried out: Remove and place all the asbestos, cement lining and asbestos sheets and lining in the kitchen, bathroom and laundry and remove and replace all asbestos lining on the eaves and electricity meter boxes.

1. Housing had agreed to collect and remove all loose pieces of broken asbestos cement from the front and back yards and excavate, remove and replace all topsoil in the front and back yards of the premises the plaintiff leased from Housing at Villawood.

1. Then a number of hearings took place to find temporary premises for Mr El-Saeidy and his family while the work was being carried out. Eventually, on 12 December 2011, I ordered that Housing was to relocate the plaintiff and his family at a townhouse in Bankstown.

1. A dispute arose about whether or not there was still asbestos present in the front and back yards at the Villawood premises. In terms of delay, there has been quite a lot of delay in Mr El-Saeidy moving back into the Villawood premises. A clearance certificate was issued by Housing on 7 February 2013. Then there were letters to and fro between Mr De Silva, the plaintiff's expert, Mr Clifton the independent expert, and the parties solicitors about the soil at the Villawood premises.

1. Putting it into perspective, the last issue before me was whether or not there was asbestos in the soil. At various times, the plaintiff was asked if he wanted to have his expert there when Mr Clifton was conducting inspections, but he declined to accede to those offers.

1. Putting it into perspective, that is the only issue that is outstanding. Mr El-Saeidy was given a couple of opportunities to serve a further report of Mr De Silva and he did not do so. Eventually, for the reasons outlined in my judgment on 28 October 2013, I refused to vacate the hearing date and I also refused to allow the further report of Mr De Silva to be relied upon. I went through the evidence including an earlier report of Mr De Silva to decide whether the property was safe for his family to go back into, and I decided it was. The grounds of appeal now sought to be raised are that firstly, I relied on the wrong guidelines and secondly it is alleged I denied procedural fairness in not allowing him to rely on the further report of Mr De Silva.

1. There is difficulty in striking the balance of convenience between the parties. Mr El-Saeidy would like to stay in the property he is in until the appeal is heard because he does not want to have to move twice. As I commented in my earlier judgment, while Mr El-Saeidy and his family occupied the temporary premises at Bankstown, his Villawood premises have remained vacant. That means Mr El-Saeidy is taking up two properties and Housing is incurring financial loss each day, as it is not receiving rent for one of those properties. If I were to accede to the stay application, this stay would continue at least for a further 90 days and until the appeal was heard and judgment delivered. As at 30 June 2012, there were 3,834 applicants and their families awaiting allocation to Social Security in the Bankstown/Villawood area.

1. Also, to date the costs of the works undertaken on the Villawood premises is $110,722.58 plus $7,500. If Mr El-Saeidy is not using the backyard in his current premises he does not have to use the backyard of the Villawood premises that he has been ordered to move into. It seems to me that the argument on appeal goes to one very specific end point, not the substantive judgment, and in terms of striking the balance, the balance comes down in favour of Housing and I am going to refuse the stay.

1. I would add this is on the very day Mr El-Saeidy was due to move that this application has come before me. There is no application for Legal Aid made as yet in relation to the appeal. The judgment was given on 28 October 2013 no explanation has been given as to why he did not take any steps to apply for Legal Aid to lodge an appeal and lodged the appeal the day before he had been ordered to move out of the Bankstown property.

1. In the interest of justice, the plaintiff's application for stay of proceedings is refused. I order that the plaintiff pay the costs of today.

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Decision last updated: 02 December 2013